When a person dies his or her estate may require the probate of a Last Will or the appointment of an Administrator or personal representative. As a probate lawyer, I’ve been known to say “where there is a will, there is probate.” In any event, estate settlement services are required in order to collect the decedent’s assets, pay claims, bills and taxes and make proper distribution of the assets remaining in the estate. The estate fiduciary has a duty and obligation to perform these tasks and may be held personally liable if there is a breach of fiduciary duty. A Utah estate settlement lawyer can advise you on this process.

In the case of the probate of a Will, the first step is to secure the original Will. If the original Will cannot be located and only a copy is available, the probate process becomes more difficult and time consuming. Typically, the person named in the Will as Executor completes a Probate Petition which is filed with the Utah Surrogate’s Court in the county where the decedent lived. The probate petition contains information regarding the Will such as its date and the names of the attesting witnesses. The petition also requires that information be provided as to the names and addresses of the decedent’s next of kin (“distributees”) and the estimated value of the personal and real property comprising the estate.

One very important aspect of Estate Settlement may involve the preparation of an Estate Tax Return. A decedent’s estate may be subject to Federal and Utah State estate taxes. Both the Federal and State tax systems have different exemptions and methods to calculate the amount of tax that may be due. An Estate Tax Return requires that information be reported regarding the decedent’s Gross Estate which includes all of the assets the decedent may have had an interest in at the time of his death.

In order to properly prepare an estate tax return, the estate Executor or Administrator must search, locate and determine the value of the assets, debts, liabilities and expenses that are required to be reported on the tax return. An estate settlement lawyer in Utah typically works with the estate fiduciary to accomplish the preparation and filing of the returns. The Estate Attorney can prepare correspondence, contact banks and brokerage firms and other sources to assist with the search and liquidation of assets. Additionally, an estate bank account can be established where the decedent’s funds can be deposited and from which bills and distributions can be made.

Various deductions may be used to lower the estate tax liability. Such deductions include the Marital Deduction and Charitable Deduction. Estate administration expenses such as attorney’s fees and executor’s commissions can also be taken as deductions as well as funeral and burial costs.

Probate Court and Wills

Probate is the process by which a last will is validated by the court. In Utah, the Surrogate’s Court is responsible for the probate of wills and Administration proceedings where a person dies intestate or without a last will. Probate proceedings involve probate court wills. A Utah probate lawyer can help you understand this process.

Typically, probate proceedings result in the appointment of an Executor and Administration proceedings result in the appointment of an Administrator. The Executor and Administrator are fiduciaries who are responsible for the administration and settlement of a decedent’s estate. This involves the collection of estate assets, the payment of debts, expenses and taxes and the distribution of the estate assets.

In a typical case the following are some of the steps that occur in the probate process:

1. Preliminary Investigation– after a person dies it is important to locate or search for the decedent’s Last Will. This document may be found among the individual’s personal papers or it may be locked up in a safe deposit box. In such a situation the Court can be asked to issue an Order allowing a decedent’s apartment to be searched or to have the safe-deposit box opened to search for the Will. Also, steps should be taken to determine the name and location of all of the person’s named as beneficiaries in the Will as well as the decedent’s distributees. It is the responsibility of the individual named as executor to promptly put together all of this material as best as possible so that the probate proceeding can be expedited. Sometimes it may be difficult to determine or locate all of the descendent’s next of kin. It may be necessary to hire a genealogist to determine the family tree or a private investigator to search for an heir whose whereabouts cannot be determined. The process to locate a person’s missing heirs can delay estate settlement.

Preparing and Filing of Probate Papers– once the preliminary papers are gathered it is helpful to consult with a qualified probate lawyer in Utah who can assist with the completion of the necessary information and documents needed for probating the Will. Additional information regarding the decedent’s assets and debts and business and financial affairs can be found and assessed at this time. A decedent’s business and financial matters can be hard to compile. A good source of information aside from the ordinary records maintained by the decedent is recent tax returns and mail delivery which might contain current account statements. Some information may need additional investigation especially if the decedent held web-based accounts. Probate can be a very complex and often confusing process since the rules contained in the Utah estate laws must be complied with and satisfied before letters testamentary can be issued to an executor. Letters Testamentary authorize the executor to act as the estate representative. These letters are given after the Will is admitted to probate.

Free Consultation with a Utah Estate Lawyer

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

You have worked hard all your life, perhaps as a contractor, small business owner, nurse, politician, or any other career that required your steadfast focus, and perseverance. You have created a life, and wealth through tough labor. The last thing you need is to invalidate your hard work and lose all that you have saved. That’s exactly what can happen when you’re caught in a lawsuit. I’ve seen this time and time again as an asset protection attorney, that you can do almost everything right and still lose because you didn’t protect what is yours. That is also why it is so essential to know strategies to protect assets from lawsuits.

Strategies to Protect Assets from Lawsuits

You may have worked years to afford that boat, even decades to afford that RV, why should anyone else obtain those assets because of a human misstep. They shouldn’t. As humans, we’re all capable of missteps, and because of this, we need to outline ways to protect assets from lawsuits; need to know what our opponents can seize. Thus, we need an asset protection strategy.

Insurance: Good But Not Enough

First and foremost, regardless of what you may think about insurance, it is good to have but it is not enough. There are severe limitations. Most civil tort lawsuits nowadays allege “fraud,” whether justified or not, because the layer can collect a greater sum. If a plaintiff makes that allegation, true or not, the insurance companies will tuck tail and run the other way. Regardless, it is still wise that you fully cover your net worth with an umbrella insurance policy. In other words, if the policy only covers part of your net worth, it is not sufficient. You can expect to spend about $250, on average, per $1,000,000.00 of coverage. This is a steal, should you ever be in a situation where your assets are in jeopardy.

You need to also be aware of who you may inherit money from. If you’re in your father’s will, and are expecting to receive his estate, be sure to cover the full amount of which you expect. Doing so covers all that he worked hard for. Imagine a lawsuit that invalidates the estates of those you love, those of whom you were expecting an inheritance. It’s not only upsetting, it’s personal. Protect yourself with adequate insurance, and have some peace of mind.

Owning a Business

If you own a business, it’s critical you use appropriate business entities. You need to select the right one as well. Remaining as a sole proprietor of your business offers zero protection from liability. As with the above-mentioned insurance, this acts as a guard against frivolous business lawsuits. Having the right business entity for your small business, is in a way, insurance, and will protect you from those who work to assume your assets.

Real Estate

If you own rental property, for instance, consider owning it in an LLC (a Limited Liability Company). An additional layer we generally use is a land trust. The land trust owns the property for privacy of ownership. Then the LLC owns the land trust. Technically, the LLC is the beneficiary of the land trust. It’s important to know the multiple ways that asset-intruders get their hands on your hard work. This way, so you know how to stop them beforehand. The use of proper tools is one way of doing so.

More Strategies to Protect Assets from Lawsuits

What about divorce? What about other jointly-held accounts? It’s crucial you protect your assets from personal intrusion. This may seem “cold” at first, when considering it, but it’s not. One way to overcome the awkwardness of mentioning safeguarding yourself within a jointly-held account, is to mention the benefits for the other party. Jointly-held accounts have the potential to wreak havoc on your assets, in the event of an unlikely divorce, or separation by one party (divorce or other relationship). This conversation is useful to those you hold accounts with jointly, as they too will see benefits in protection.

Trusts

There are many types of trusts. To protect yourself from lawsuits, the offshore trust is one of the strongest asset protection strategies. Set it up the Cook Islands and with an offshore account in Switzerland and it is virtually bulletproof. We have never seen a client lose money in a lawsuit when we have established this structure for them.

Partnership Dangers

You also need to avoid partnerships. Like jointly-held accounts, partnerships, if used at all, the parties need to formalize it. This helps to minimize disputes between partners. The problem is that it is difficult to protect your assets in the event your partner commits an act that jeopardizes the partnership.

Consider you have a partnership with someone erecting above-ground pools. What happens when your partner is working alone, one day, but makes a serious mistake and someone ends up getting seriously injured or killed. Your assets are in jeopardy, even though you had no part in the action. You were merely his partner. The last thing you need is for your partner John’s mistake, to cost you, possibly, your life savings. So, it’s important to consider all partnerships carefully, if you used them at all. The bottom line is this: Avoid partnerships like the plague. Your partner’s mistake can cause you to lose about everything you own.

Corporations for Asset Protection

When you run a business, establish a corporation. Operating your business as a corporation gives you a legal shield should a customer sue your business. When a lawsuit strikes, the company contains the liability inside. Rather than exposing your personal home, bank account, automobiles, savings and everything you’ve worked so hard for the company acts as a lawsuit shield. It is easy to have an experienced professional (such as this one) establish a corporation for you. Simply give them the name you want to call your business, the name of the first director(s), and then cover the cost of formation. When an ugly lawsuit against your business rears its head, you will be glad you did.

LLCs for Asset Protection

Another area people need to be careful, as partially discussed earlier is the importance of forming LLCs, over a sole proprietorships or partnerships. Sole proprietorships or partnerships essentially mean that you have no safeguard. You can be held personally liable for any misstep you take, any misstep your partner takes, or any perceived misstep. An LLC can have great tax benefits for holding income-producing real estate or other passive investments, such as stock market investments.

It is best to hold one piece of rental real estate in one LLC. That way, if someone sues the LLC, only one property is at risk. You have effectively cubby-holed your liability to one property each.

Sole Proprietorship Warning

Many people work as contractors, under the sole proprietor designation. The problem with this is that you open all your assets for the taking should you make a wrong move. Imagine you are a tutor. Your business is formed only with your first and last name. You’re not incorporated. You don’t have the LLC designation.

What happens to you as a tutor when a student looking for some form of attention accuses you of sexual harassment? You are in big trouble, is what happens. What if your employee cause bodily injury to another person? It happens all the time. Everything you have worked for is now in jeopardy, because of a simple, false accusation or employee slip up. Don’t let someone take your earnings because you failed to form a simple LLC. The process doesn’t take very long, and in doing so, you are saving yourself from poachers.

Retirement Funds

Another way to protect your assets is to use a retirement fund. These funds are usually well protected in most states, and if you are not in need of a certain amount of money, or compounding income, being smart, is to transfer those funds into that account. The only hiccup with this is that you need to consider, many of these accounts require you to wait a certain period to remove funds in order to remove them untaxed. You always have access to remove any funds from these accounts as you like, but there is usually a penalty for withdrawing too early, usually before around age 60, give or take. Stay up to date on the latest retirement account statues where you live.

Free Initial Consultation with an Asset Protection Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you need legal help, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

You’ve worked hard to build your assets. You don’t have to work quite as hard to protect them, but a good asset protection plan requires knowledge and attention to detail. I’ve seen it because I’m an asset protection lawyer. If you do not establish and optimize your asset protection plan, a lawsuit or other unfortunate event could wipe your assets out entirely. There’s no one-size-fits-all plan. If you want to know how to protect your assets, there’s a custom-tailored optimal plan for you. So, talk with an experienced consultant.

Business Protection

How you structure your business makes all the difference in protecting your assets. If you’re a one-person business, a sole proprietorship is the easiest way to go – but don’t do it. Sole proprietorship doesn’t distinguish between business and personal assets. Should the enterprise fail or a customer sues your business, creditors can come after your personal bank accounts, home and other assets.

LLC

A Limited Liability Company or LLC, makes far more sense for asset protection. An LLC protects you from personal liability. It can consist of members, but not shareholders. The IRS doesn’t consider an LLC a taxable entity by default, as its proceeds pass to the members. The members are responsible for paying tax on company profits. When you operate your business as an LLC, its members are self-employed and must pay self-employment tax on ordinary income. This includes Social Security and Medicare. Some exceptions are rental income and capital gains, where these two taxes do not apply. Members report all income on their personal tax returns. By appropriately filing an 8832 form the LLC can be taxed as a corporation. In addition, if a 2553 form is filed, an S corporation. Regulations vary by state, but an LLC is inexpensive to set up.

S Corporation

Another business structure for asset protection is the S Corporation. According to the IRS, an S Corp is a corporation “that elects to pass corporate income, losses, deductions, and credits through to their shareholders for federal tax purposes.” S Corps are not required to pay federal corporate income tax on profits, unlike larger “C” corporations, but may have to pay state income tax. The IRS limits S Corps to 100 shareholders, who must all have U.S. citizenship or legal resident status. Individuals qualify as shareholders, but not partnerships.

S Corp shareholders report income on personal tax returns, taxed at their individual rates. US for-profit corporations are C corporations by default. In order to turn a C corporation into an S corporation, the most common scenario is that you file a 2553 form with the IRS. You must do this within 75 days of formation or within 75 days of the beginning of the year in which you desire S corporation status. One downside – the IRS may scrutinize S Corps more than other small business structures.

With LLCs and S Corps, you must always maintain the corporate veil for asset protection. That means having annual shareholder’s and director’s meetings and writing minutes for those meetings. You keep resolutions for major corporate decisions in a written format. That also means no mingling of personal and corporate assets. All corporate assets require proper titling, and you must use corporate checking accounts and credit cards to pay business-related expenses and a personal checking account and credit card to pay personal expenses.

Protecting Your Home

Most states have a homestead exemption for lowering property taxes, but several have homestead exemptions protecting the primary home and its equity from creditors. That’s something to take into consideration if you plan to move. Utah has one of the liberal homestead exemptions, protecting up to a half-acre property within a municipality – and up to 160 acres in rural areas. However, that exemption doesn’t apply to any lenders holding a mortgage. In Texas, an “urban” homestead of up to 10 acres is protected, while an exempt rural homestead consists of 100 acres for an individual and 200 acres for a family. Texas law also exempts from seizure up to $60,000 worth of personal property for families and $30,000 for a single person. Again, the exemption doesn’t apply to mortgage lenders.

If you don’t live in a state with a generous homestead exemption from creditors, protect your home via proper titling. If you are married, your home’s title should read “tenants by entirety.” If there’s a judgment against one of you, the creditor can’t collect against the property. To optimize your asset protection plan even further, you can put your home into a land trust. This gives you privacy of ownership. We often employ equity stripping programs where we set up LLCs that you privately own and record a home equity line of credit type of mortgage against the home. Then, if need, there is an international institution that can buy the mortgage for cash. They place the cash into a “you can’t touch it” account in an offshore asset protection trust that we establish for you.

Insurance Analysis

The right type and amount of insurance protects you from losing assets to lawsuits. Inadequate insurance leaves your assets vulnerable. You may have enough insurance on your home to rebuild in case of a fire or natural disaster, but do you have enough insurance to protect you from a lawsuit if someone injures themselves on your property? For example, if your dog bites someone, expect to shell out at least $37,000, according to the Insurance Information Institute. If the dog causes permanent injury or facial scarring, expect to pay out hundreds of thousands of dollars, minimally. Umbrella insurance added to your homeowner’s policy costs just a few hundred dollars a year and provides $1 million or more of additional liability insurance for worst-case scenarios.

States require motor vehicle owners to carry a minimum amount of liability insurance, but minimums don’t go far when a serious accident involving major injuries occurs. Without adequate liability insurance, a lawsuit is virtually inevitable. Make sure you have sufficient coverage. Be sure if you bundle your home and auto insurance with the same company, that umbrella insurance covers such catastrophes.

Although it won’t benefit you directly, make sure you have adequate life insurance to protect your family. Life insurance is especially necessary if you are the sole or primary breadwinner. Your spouse or dependents may have to start selling off assets quickly if there’s no life insurance cushion. Sit down with an insurance agent every few years to review current income, asset-to-debt ratio and future plans. A good look at the numbers will determine how much and what kind of life insurance you need.

Retirement Accounts

Your 401(k), IRAs and similar retirement accounts may make up the bulk of your assets. The good news is that most states protects these assets from creditors. However, if you fail to pay child support – or the IRS finds you owe taxes – your retirement accounts are at risk. The 2005 Bankruptcy Abuse Prevention and Consumer Protection Act extends bankruptcy protection for retirement assets to up to $ 1 million. However, that does not include inherited retirement assets, unless the heir is a spouse. Utah offers weak IRA protection that attorneys can easily penetrate with sufficient arguments showing that the debtor can attain sufficient retirement income from elsewhere.

Estate Planning and Trusts

To optimize your asset protection plan, you should also incorporate estate planning into the mix. For example, to avoid the probate process, put your assets in a revocable living trust. Although the trust now owns the assets, you as the grantor and/or trustee control them just as you did when they were in your name. You can buy, sell and add assets to the trust during your lifetime. Once you die, the trust becomes irrevocable and can’t change. Your assets go to your named beneficiaries. However, such a trust cannot provide asset protection. A trust that can provide asset protection is the Domestic Asset Protection Trust, or DAPT. Only 16 states permit such trusts.

While creditors can’t access a DAPT, it is an irrevocable trust and has an independent trustee. That means you are not the person controlling the DAPT. Based on state law, certain creditors can access DAPTs. These include former spouses demanding child support or alimony. Certain states allow a tort creditor to access a DAPT. For example, let’s say you are a doctor facing a malpractice case and create a DAPT to shield assets. A plaintiff may collect a judgment from the DAPT if you established the trust after the alleged malpractice incident, without the sufficient passage of time. On the other hand, Offshore asset protection trusts have the benefit of being outside of the reach or US courts. So, they have proven themselves much more effective at protecting assets.

Medicaid Planning

You can make have a first-rate asset optimization plan in place, and lose your assets in old age if you or your spouse requires long-term nursing home care. Failure to disclose assets to Medicaid is a criminal offense. In a worst-case scenario, you would have to spend down virtually all of your assets with the exception of your home, one motor vehicle and $2,000 in the bank, although that number is somewhat higher in certain states. Protecting assets from Medicaid is possible, but it’s a process to start well in advance. Any gifts made to children or others within 60 months – five years – of the Medicaid application are penalized. Reducing your countable assets by giving funds to loved ones must happen prior to that five-year window and with consideration of potential tax consequences.

Optimize Your Asset Protection Plan

These are just some ways to optimize your asset protection plan. Life would be easier if we knew what it will throw at us, but that’s not the way it works. There are always people lurking about knowing it is easier to take your money than to work to earn it themselves. Don’t let yourself become a victim of the legal system. Protecting your assets to the best of your ability can shield you from most of these fears.

Free Initial Consultation with an Asset Protection Lawyer

When you are ready to protect your assets, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Child Time Sharing: It is the most wonderful time of year. The holiday season has arrived. For many people throughout Utah, it is a time for families to get together. But as I’ve seen as a family lawyer, this is not always the case for families of divorce? Salt Lake City is home to countless families with children that have split apart. While many divorced couples share co-parenting duties. It can be a little more challenging during the holidays. However, with a little creativity and tolerance, there is no reason why everyone can’t enjoy some holiday cheer.

When it comes to divorce, Utah family law encourages both parents to be involved in the upbringing of their children. This often involves co-parenting. Ask any Salt Lake City divorce attorney and they can tell you horror stories of many couples that ended their marriage acrimoniously. But when it comes time for the holidays, there are some solutions to make those Christmas get-togethers are little more bearable.

CHILD TIME SHARING SUGGESTIONS

Comply with your divorce settlement:It is important to follow all of the court’s rulings for your co-parenting conditions. Not only is it the law, it is designed to be fair. If you have any disagreements with your ex-spouse, keep it away from the children.

Each parent should spend equal time with the children:The holidays are known as the season of giving. One of the best gifts you can give to your child is the opportunity to spend equal time with their mother and father. The court should have a holiday time-share plan.

Be respectful to your former spouse:Do not disrespect your ex-spouse in front of the children. It is easy to get into a verbal spat over how your kids should spend the holidays. But it does not make the situation better and is completely unproductive. Do not rob your child’s opportunity to enjoy their Christmas.

Be cognizant of your child’s happiness:Always place the best interests of your child first. Far too many divorced couples see child time sharing as a competition. Each parent wants to project a better image than the other. That is the wrong approach. Instead, focus on your child’s happiness. By creating a positive experience, it will also help your child enjoy their holidays with your former spouse.

Divorce can leave deep emotional scars for everyone involved–especially the children. But it does not have to always get ugly. Make the effort to peacefully co-exist with your ex. A little kindness and respect can often go a long way.

LIFE HAPPENS: DON’T LET IT HAPPEN WITHOUT A LEGAL SEPARATION

For many couples, divorce is not just an overnight decision. Rarely does someone just wake up one morning and decide that they are going to file papers. A lot of couples may even opt for a trial separation. In some cases, they may not even intend to get remarried so it just seems easier to stay living apart without formally dividing their assets.

While it might seem easier, separating without a formal agreement can leave both spouses unprotected. Whether a couple chooses a legal separation or a formal divorce, setting terms for how property should be handled is more than a prudent choice.
How can living separately have a financial effect? The first issue is that a spouse may have no idea how the other spouse is spending the couple’s money. Until divorce occurs or a legal date of separation has been decided, any income earned or liability incurred is still considered marital. Longer separations even provide more time for a spouse to carefully hide assets.

Aside from how a spouse may spend or deal with finances, a lot can happen in life that could affect a future settlement. For instance, the law itself is a consideration. Not only can laws change, but a spouse could move to a jurisdiction in which the settlement outcome may be drastically different due to varying laws.

What if one spouse decides to enter into a new relationship? It may not have been in his or her future plans; but it happens. Not only would a spouse have to obtain a divorce prior to remarrying, but being in a relationship during divorce could have an effect on the outcome.

What if a spouse loses his or her job? What if you inherit a large sum of money? What if a lawsuit arises against the other spouse? What if they run into criminal trouble and are forced to pay restitution?

The point is that life is unpredictable, but those that want to have control over their financial future should discuss their intentions with an experienced divorce attorney in Utah.

Free Consultation with a Holiday Parent-Time Lawyer

If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will help you.

The climate in Washington and uncertainty of where healthcare will end up has some couples rethinking their divorces. I’ve seen this before as a divorce lawyer.They are deciding to stay together to keep their current health insurance. This does not mean they are salvaging their marriage or there is any hope for a reconciliation. It simply means they are working on postnuptial agreements that outline how the finances and benefits will be distributed pending an official divorce. Other couples have chosen to finalize divorce documents but not sending them in until they know what will happen to healthcare. Previously couples could obtain a legal separation and be able to keep benefits for up to three years. However, companies no longer allow the legally separated partner to stay on employer plans. This leaves spouses with few options and this is the solution that many have come to.

THE AFFORDABLE CARE ACT

Women, especially suffered the most from a divorce prior to the Affordable Care Act. They would quickly be kicked off of healthcare plans their spouses had at work and would be unable to find an affordable plan. Under Obamacare, insurers were required to provide health care plans to anyone with a pre-existing condition. By no means is the current healthcare act fool proof but it has allowed more independence when getting a divorce. Now that it is being threatened, couples are reconsidering their options.

UNABLE TO MOVE ON

Divorces are caused by many things and couples who still care for their partner’s well-being will separate but help as much as possible to help them keep their benefits. This is a difficult situation for both spouses to be in. They want to move on with their lives and start anew but are tied together legally. When they start dating again and get into a new relationship, it can even put a strain on the new relationship because the partner might not be as understanding. This can also cause a complication for the divorcing partners as there can be an added pressure to get a divorce faster. This can foil the plan of staying together or holding the divorce for the sake of health insurance. Couples can only hope that Washington finds a health care solution or leave the Affordable Care Act in place.

RELIGION: SOMETIMES A TOUGH ISSUE TO CONFRONT IN CHILD CUSTODY

An important issue that sometimes comes up in Utah child custody cases is religion. Maybe one parent practices one faith, while the other parent practices another. Or maybe both parents practice the same faith, but one parent observes particular religious tenets while the other parent doesn’t. In any case, child custody and visitation arrangements should always be based on the best interests of the children.

It is completely understandable that each parent will want to adhere to his or her belief system, as well as pass religious (or secular) values on to their children; So, when it comes to visitation schedules, how can parents compromise in matters of faith?

With many religions, the issues to consider in child custody are clothing, food and the observance of other religious practices such as prayer and holidays. When there is a conflict, these are not easy matters to confront, but if parents want to avoid going to family court, it is important to remember that compromise is usually necessary.

Parents trying to set up a workable visitation schedule often have to address the question of where the children will go on certain holidays. Children, and especially younger ones, depend on routine for a sense of stability, so divorcing parents may want to establish exactly which religious holidays will be observed at which residence. Even if a sudden change of plans is necessary, that issue can be addressed when the time comes. In any case, it is better to have a plan in place rather than assume life will go smoothly.

The in-house observance of religious tenets is another issue that sometimes leads to conflict between parents. This issue can perhaps be even more contentious than parenting time on religious holidays. If parents have child custody and visitation concerns related to religious practices, then consulting with a Utah family law attorney may be helpful in understanding exactly what rights parents have.

Free Consultation with Divorce Lawyer

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.

Asset Protection Tips for entrepreneurs, medical practice professionals and small business owners. As a lawyer for entrepreneurs, I work hard to make sure our clients are protected. This post discusses how to put a plan in place for protection from employee lawsuits. We also cover common employee lawsuits, protecting business and personal assets, avoiding lawsuits, and termination tips.

The Equal Employment Opportunity Commission (EEOC) receives over 100,000 employee claims filed in a fiscal year. The result is nearly half a billion dollars that employers paid out in EEOC claims. A full 10% of wrongful termination and discrimination cases see employees awarded $1 Million+ settlements. The average is $40,000 per settlement. Legal fees for court trials in these cases average $45,000 in defense costs.

No matter how well prepared you are, you can still become victim to a Robin Hood judge. Many members of the judiciary delight in transferring a business owner’s wealth to an employee looking for an easy buck. So, do what it takes to protect yourself. For example, you can establish an asset protection trust. It one of the most effective tools to shield your hard-earned wealth. Then, divide your business empire into a series of properly filed and maintained companies. When someone sues one of the companies, the lawsuit does not affect the others. Do this before the bullets start to fly is a good start. That said, below we will discuss some additional warnings and corresponding precautions you can take.

Common Employee Lawsuits

The most common employment claims are wrongful termination, discrimination (age, sex, religion), sexual harassment, retaliation, whistleblowing and more. Race discrimination used to top the charts, however retaliation has become the top cited form of discrimination claim.

Unfortunately these figures are on the rise. We assist more and more business owners and medical practice owners who are concerned with employee lawsuit vulnerability. There are many reason why this is happening, both socially and economically, however it means that it’s never been more important to protect yourself and your business from an EEOC claim.

As soon as an employee files an unemployment claim, his or her mailbox is filled with mail from law firms offering free consultations boasting big payouts. It would cost a person nothing to try because a majority of these firms offer services on a contingent fee basis.

Business Protection

Insurance is not enough. Carrying EPLI (employment practices liability insurance) offers limited protection to the business depending on your state and insurance policy. Depending on how you structured your business, your business entity may not shield your business assets. The secret? Set up one corporation or LLC to operate your business. Set up another company (preferably an LLC) that owns business equipment. Your operating company simply leases the equipment from company number two. Both, in turn, protect you from personal exposure.

Personal Asset Protection

Finding yourself in an employee lawsuit could be big and costly, not just in legal fees, but in your time as well. You can take your wealth off of the lawsuit radar for good with a proper asset protection strategy. Set up an asset protection trust. Inside the asset protection trust is an LLC. You are the manager of the LLC. You make investments. As the manager you are the signatory on the bank and investment accounts. When the “bad thing” happens, the trustee steps in as LLC manager. This puts you in a position of impossibility when ordered to release the funds.

Your home goes into a land trust for privacy. Income property also goes into individual land trusts. Then, for anything but a personal residence, an LLC owns each land trust. The land trust provides a shield to keep your name and company names out of the public records. The LLC gives asset protection. For example, you and your spouse own the LLC. When someone sues you, legal provisions protect your company membership and anything inside of it.

Avoiding Lawsuits

The best outcome you could wish for is that nobody hits you with a lawsuit. The problem is that you don’t control the other guy. Any employee can sue you at any time, whether justified or not. The only thing you can do is to protect your assets from lawsuits and be clear about employee and management policies.

Managing employees is challenging because we all want to be a nice person and for others in the workplace to like us. Unfortunately that’s where most of the problems arise. The most problematic management responsibility, in a legal sense, is hiring, firing and discipline in proper and effective ways.

Employee Firing and Discipline Tips

Have written job descriptions with responsibilities and performance expectations

Communicate clearly how you enforce your requirements

Encourage and enable employees to communicate any issues in the workplace or their performance

Establish a specific discipline process and high standards

Firing an employee is a process in which you, the business owner, are responsible. Here’s a four-step discipline plan for employees that can help you avoid an EEOC lawsuit.

Initially, deliver constructive criticism, further instructions and feedback (good or bad) verbally. This is as simple as communicating to your employee that there is a performance issue or conflict in the workplace that he or she needs to assess.

If an employee’s subpar behavior or performance persists, you write down exactly what the performance issue is. Then reference the job description that they interviewed for with your performance expectations, discipline process and responsibilities clearly defined. Provide a copy to the employee. This all becomes a pillar in your case against an EEOC charge.

Before firing your employee, the final management discipline action is to provide an affirmative written agreement. It should generally specify the performance or behavior that the employee needs to improve. The agreement will tie everything together, the employee agreement with employee responsibilities, performance expectations as well as your discipline plan. In the agreement the employee should agree to specific changes in his or her performance and behavior.

More Asset Protection Information

The most common mistake made by managers is not keeping records of underperformance or bad employee behavior

Verbal warnings and discipline often ends up into a hearsay battle

With detailed documentation of repeat offense with an employee signature would leave little chances of losing a lawsuit, or even finding a lawyer to sue

When it comes time to terminate an employee after all of your management efforts have failed, you must have this process defined. Start with security; you should first address access, keys, passwords, entry cards or other security items such as alarm codes. HR experts recommend that you have a witness during this process. It should include a final interview that you document, if possible. If the employee has compensation coming, write a check on the spot (if you can), including any severance or other offering you may have at the time of termination. Finally, encourage feedback, either at the time of the final interview, or in writing later with a form that you provide.

You cannot avoid the lawsuit threat. However you can minimize your vulnerability. Communicated and enforce strong practices and policies. Most importantly, protect your business and personal assets from lawsuits.

Free Initial Consultation with an Asset Protection Lawyer

When you need help protection your assets and your business, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Have you been arrested for theft in Weber County, Davis County or Salt Lake County? A theft conviction in Utah can result in jail time and may severely limit your future employment opportunities among other problems. As a criminal lawyer, I have help you by protecting your rights and guiding you through the process. Our experienced criminal defense attorneys handle a wide range of theft and fraud charges, including:

Shoplifting and retail theft

Employee theft

Theft

Bad checks

Fraud and identity theft

Embezzlement and other white collar crimes

Standing By Your Side

Many people who are charged with shoplifting and other theft offenses have never been charged with a crime. They frequently do not understand the process involved in a criminal case and how the system works.

At our firm, we believe strongly in the importance of personal service. We take time to educate clients about the law, explain their charges, answer their questions and listen to their concerns.

Aggressive Defense Lawyers

Our criminal defense team is experienced and aggressive. We believe that every client has a right to a vigorous defense.

In our opinion, there is no such thing as a small criminal charge. Every criminal charge carries the potential for serious consequences and penalties. In many cases, it is the collateral consequence of a criminal conviction that can do the most damage. This is especially true in a theft case where a conviction can do serious harm to a person’s future employment opportunities.

Multiple DUIs

Utah takes DUI charges very seriously. For individuals charged with multiple DUI offenses, the consequences are much steeper. If you have been arrested and charged with your second, third or fourth DUI in Utah, it is critical that you hire a skilled and highly trained DUI defense lawyer as soon as possible. Having a strong advocate on your side is critical to handling the charges effectively with as little disruption to your life as possible.

Understanding How Utah Handles Repeat DUI Offenses

Multiple DUI offenses are serious. In Utah, a DUI is an enhanceable offense. This means that you may be charged with a more serious offense if you have been charged with the same crime before.

Second offense — If you have two DUIs within a 10-year period, the mandatory minimum sentence is 10 days in jail. In addition, your driver’s license will be suspended for a year and you will have a minimum fine of $800. The fine does not include the cost of impound fees, increased insurance premiums, license reinstatement fees, alcohol education classes and treatment costs.

Third offense — If you have three DUIs within 10 years, the offense will be charged as a felony DUI offense. The mandatory minimum sentence is 62 days and could face as much as five years in prison. Your driver’s license will be suspended for two years and you will face fines starting at $1,500. You may also face the seizure of your vehicle.

All DUIs in Utah will require you to install an ignition interlock device on your vehicle. This device prevents you from starting your car unless you have blown into it to verify that you are not intoxicated.

These harsh penalties do not mean you are without options. It is understandable that you may not want your employer or even certain family members to be aware of your DUIs. Our attorneys will always work to have your charges dismissed. In the event that we are unable to have the charges thrown out, we will do everything we can to minimize your consequences and protect your reputation.

Free Consultation with a Criminal Defense Attorney

When you need criminal defense, even if it is a DUI, shoplifting, bad checks, bounced checks, or theft, please give our office a call for your free consultation (801) 676-5506. We want to help you.

As an estate lawyer, I have explained that there are many types of irrevocable trusts that can help you secure your assets and reduce taxes.

They include the following:

Asset Protection Trust An asset protection trust is used as a fortress to keep creditors from seizing assets. There are asset protection trust laws in states such as Nevada, Wyoming, Delaware, Alaska and North Dakota. In practice, we have found that they can provide a fair level of protection, especially, for residents of those states. However, they have the disadvantage of being under US court jurisdiction. Judge’s do not always follow the law and there are ever-expanding legal theories of liability. So, we have seen assets in domestic trusts seized on numerous occasions. Offshore irrevocable trusts in jurisdictions such as the Cook Islands and Nevis have a perfect or near-perfect track record for protecting assets from judgment creditors. Because US judges do not have jurisdiction over foreign trustees, the trustee need not comply with US court orders.

Bypass Trust This type of trust that married people use. When one spouse dies, the property goes into the trust. The surviving spouse can use the property, but does not own it. This means that it is not part of the estate when the surviving spouse dies. This equates to tax savings.

QTIP Trust Another trust designed for married couples, a QTIP trust typically provides income to the surviving spouse when one spouse dies. When the second spouse dies, other named beneficiaries receive the assets. This is typically the settlor’s children. QTIP stands for Qualified Terminable Interest Property.

QDOT Trust A QDOT trust is similar to a QTIP trust. The difference is that noncitizens use it. QDOT stands for Qualified Domestic Trust.

Life Insurance Trust With this type of trust, the trust is both the owner and the beneficiary of the life insurance policy. Anyone, in turn, can be the beneficiary of the trust. The grantor must typically create the trust at least three years before death. It lets a person reduce or eliminate estate taxes so more of the proceeds go to the beneficiaries. The trustee, then, administers insurance proceeds for one or more beneficiaries.

Generation-Skipping TrustWealthy families often use this tool. As the name implies, the trust skips a generation. The final beneficiaries are the grandchildren instead of the children. The children are beneficiaries of the income, but do not own the property. This means that when the children die, their trust property is not subject to estate tax. However, a generation skipping transfer tax may apply.

Charitable Trust If you don’t have any family – or maybe you do have family but don’t want to give them an inheritance – you can opt for a charitable trust. If you are not married and have no children this may be a good choice. This type of irrevocable trust allows you to give gifts to charity as a way to lower income and estate taxes. The charity benefits from your donation as well, so it’s advantageous to both parties. There are three types of charitable trusts.

Types of Charitable Trusts

Pooled income trust:This trust allows you to pool your money with other grantors and receive income for a specified amount of time. For these trusts, the charity is the trustee and beneficiary.

Charitable lead trust:You put property into a trust. Next, you name a charity to receive income from the trust for a certain amount of time. However, you name someone else as the final beneficiary.

Charitable remainder trust:You put property into a trust. Then, you can receive a tax deduction for putting the asset into the trust. You name someone to receive income from the trust for a certain amount of time. The trust specifies a charity as the final beneficiary.

Trusts for Special Needs

If your goal is to protect assets and income for loved ones, choose one of these trusts:

Special Needs Trust If you have a child or other loved one with special needs, a special needs trust can help provide financial support for this person in the event of your death. Property – particularly money – is placed into this irrevocable trust. You appoint a trustee to distribute the funds to buy necessities for the disabled person. The beneficiary never owns the property. This works to his or her advantage because the money is not considered as asset. The beneficiary does not make too much income and therefore can still qualify for government benefits.

Spendthrift Trust Maybe you don’t have a disabled relative, but maybe you have a sibling or child who is horrible with money. Some people are just irresponsible with money, but that doesn’t mean that you need to leave them out of your inheritance. With a spendthrift trust, you can protect and control the money that you gift to family members who have trouble managing their finances. The settlor places assets into a trust. A trustee doles them out based on the terms in the trust. For example, you may allow the beneficiary to receive only a certain amount per week or month. The beneficiary cannot access the trust property, so the assets are protected from creditors. However, once the beneficiary receives money or assets, they become fair game.

Irrevocable Trust – The Way to Go?

Irrevocable trusts offer many asset protection, estate planning and tax advantages. For the general public, an irrevocable trust may be very useful in protecting assets from lawsuits, securing financial help for a special needs child or providing for children after the death of the parents.

You need to be able to trust your trustee. What happens if you have a falling out with your trustee? Change them. The beneficiaries can simply vote in a new trustee. The trustee must not be you. The trustee also must not be someone up or down the family tree, cannot be a controlled employee and cannot be an agent of yours. If any of these parties were trustees it would lose its asset protection advantages because the courts would consider these people your alter ego.

Should you choose an irrevocable trust, some wise advice is to have it skillfully drafted by an experienced professional. This is extremely important, since a poorly worded document may not do what you intended for it to do and ruin your asset protection and estate planning goals. Contact an estate planning expert to see if an irrevocable trust will meet your needs based on your unique situation.

Free Consultation with a Trust Lawyer

If you are here, you probably have a trust or estate matter that you need help with. If so, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Because I’m a bankruptcy lawyer, I’m often asked questions about the bankruptcy chapters. The different types of bankruptcy are divided into chapters. Chapter 7 and Chapter 13 bankruptcy are the two most common chapters that individuals and small business owners file. Here is some information that we hope will help shed some light on the unique power offered by Chapter 7 bankruptcy:

Wipe Out Debt Permanently

Chapter 7 bankruptcy is a great solution for individuals who have become burdened by hardships and unmanageable amounts of business, medical and credit card debt, bank and payday loans, tax debt and even debts against secured assets. Harnessing the power of Chapter 7 bankruptcy, our clients routinely and permanently wipe away an individual’s personal liability on debt in amounts between $5,000 and $5,000,000 – with no further obligations to their creditors! Another incredible aspect is that this process usually only takes 3 months.

Stop Harassment, Garnishments, Repossessions & Foreclosures!

Creditors tend to be very aggressive with collections, especially on larger amounts of debt. Unfortunately, they often utilize a string of half-truths and flat out lies to scaring people to get their way. It’s no wonder there are so many misconceptions about bankruptcy – your creditors are the last people that want you to know how it really works.

The “automatic stay” is one of the most powerful provisions within the bankruptcy code that prohibits creditors from any collection efforts once an individual’s case is filed. So basically, the bankruptcy court has the power to “push pause” on your creditors and instantly halt collections and even legal action – regardless of where it is in the process.

The automatic stay is effective for the duration of the bankruptcy process. After the debt is wiped away, a “discharge injunction” is issued which provides permanent protection after the automatic stay expires. Both of these provisions prohibit creditors from attempting to collect discharged debts from you, and the penalties for creditors that decide to disobey this order can be severe.

Keep and Protect Property

A common misconception is that if you file for bankruptcy, you’ll lose everything. Nothing could be further from the truth. Most of the time our clients keep everything they own. How? The bankruptcy code has what are called “exemptions,” which are used to shield your valued assets from the bankruptcy process (and your creditors). Exemptions cover many types of property including homes, land, vehicles, tools, furniture, clothing, jewelry, and much more. Additionally, life insurance cash value, workers compensation claims, and retirement plans are all exempt. Exemptions are controlled at the state level, so it’s important to discuss them with a local bankruptcy attorney.

However, it’s important to note that in a Chapter 7 bankruptcy, any non-exempt property can be auctioned off by the bankruptcy court to repay your creditors. Also, when exempting property that is secured with a loan, such as a financed car or a mortgage, (known as “reaffirming”) those payments must be current and kept current throughout the bankruptcy process. If you are unable to catch up on payments but would like to keep the property, Chapter 13 bankruptcy may be a better alternative that allows you to catch up on the delinquent payments over the next few years while maintaining possession of the property.

When implemented properly, exemptions provide incredible results that allow you to maintain your way of life while wiping away debts that could otherwise threaten it.

Get Rid Of Unwanted Property

Trying to ditch property outside of the bankruptcy process results in the creditor or lien holder being able to repossess the property and go after the debtor for all kinds of fees, interests and of course the remaining balance after the property is auctioned off (most likely at a price that is significantly under the market value).

Fortunately, Chapter 7 allows you to surrender these “assets” and the associated debts. That’s right – the lender is forever prohibited from going after the debtor for any related collections or fees, and the debtor is released from any contractual obligations. This can be a blessing to individuals and families that are struggling to keep up with payments on vehicles, homes or other assets they can no longer afford.

By getting out of debt, you create a world of new opportunities and possibilities. No longer is the heavy burden of harassing phone calls, building interest, collection and legal fees, repossessions and foreclosure something that weighs you down every day. Chapter 7 bankruptcy can transform your finances and your life, and creates lasting peace of mind. To see if you meet the qualifications to file a Chapter 7, consult with an accomplished and knowledgeable bankruptcy law firm in your state.

Free Consultation with Bankruptcy Lawyer

If you have a bankruptcy question, or need to file a bankruptcy case, call Ascent Law now at (801) 676-5506. Attorneys in our office have filed over a thousand cases. We can help you now. Come in or call in for your free initial consultation.